P. v. Montoya
Filed 7/3/13 P. v. Montoya CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
FORTINO GILBERT MONTOYA,
Defendant
and Appellant.
E054699
(Super.Ct.No. RIF10003653)
OPINION
APPEAL
from the Superior Court
of
County. Thomas Kelly,
Judge. (Retired judge of the Santa Cruz
Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Gregory
S. Cilli, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant,
Fortino Montoya, pled guilty to two counts of
§ 12280, subd. (b)),
name="_ftnref1" title="">[1] possessing a handgun by an ex-felon (§ 12021,
subd. (a)(1)), and possessing ammunition by a person who may not possess a
firearm (§ 12316, subd. (b)(1)). He
also admitted suffering two strike priors (§ 667, subds. (c) &
(e)(2)(A)). After the trial court
dismissed one of his strikes, he was sentenced to prison for seven years, four
months. Defendant appeals, claiming the
trial court improperly sentenced him. We
reject his contentions and affirm.
Below
Defendant
pled guilty to all the crimes and admitted both the strike allegations brought
against him. In his change of plea form,
he stated that his sentence would be “7 years, 4 months top[.]†At the taking of the plea, the trial court
explained how the seven years, four months maximum was calculated as follows,
“ . . . [Dismissing] one of the strikes
and . . . sentencing [defendant] to [the assault weapons charges]
consecutive. [Sentences for the handgun
possession and ammunition possession] would be stayed.â€
At
the sentencing, defense counsel
pointed out that the probation officer had recommended something other than
seven years and four months.
Specifically, the probation officer recommended imposition of the middle
term for the assault weapon possession, doubled because of the strikes. Defense counsel asked the court to impose a
sentence of five years, four months, which, we assume, would be double the
midterm for one of the assault weapon convictions plus a consecutive double
one-third the midterm for the other. The
prosecutor, who had previously expressed his opinion that seven years, four
months, was an adequate sentence, but objected to the dismissing of one of
defendant’s two strikes, reiterated his approval of a seven years, four months
sentence.
The
sentencing court said, “This is one of the tougher
cases . . . . It’s
got heavy weights on both sides of the scale.
I acknowledge [defendant] had . . . the last ten
years . . . [as an] upstanding citizen.
. . . [¶] On the
other hand, it’s absolutely chilling to see these assault rifles out in the
community, in [his] home. . . . I’m certain that [he was]
aware of just how dangerous those things are.
There’s absolutely no reason that I feel that people need to have
assault weapons stashed away at their homes.
So that was extremely poor judgment.
[¶] . . . I . . . took a
balance when I got a sense of [defendant] from [his] attorney, and I
[dismissed] a strike as I did not feel on balance [that defendant was] within
the legislative scheme there to just throw [him] in prison and toss the key
away. So it’s a balancing.
. . . [T]here’s heavy weights on both sides of the
scale. If we were to change the nature
of the weapons, for instance, I would probably—I definitely would tip towards a
lesser sentence. So this is a tough
one. [¶]
So with respect to the first assault [weapon possession]
charge . . . , we had an
understanding . . . with a seven-year, four-month top. [S]o I’m going to stick with that
assessment.
So . . . I’m selecting the upper term of three
years. [¶] The reasons
are . . . [defendant’s] criminal history, although it’s
also reflected in the strike. There was
a strike that was [dismissed]. It’s a
pretty serious criminal history. Even
though a strike is [dismissed], it doesn’t disappear.â€
and Discussion
Defendant
contends that the sentencing court considered the nature of the weapon he
possessed in imposing the upper term, and because the nature of that weapon is
an element of the offense of which defendant was convicted, this was
improper. In so doing, defendant relies
on the statements the trial court made concerning the nature of the weapon and
ignores the court’s statement that it was imposing the upper term due to
defendant’s criminal history. However,
we are unwilling to ignore the court’s very specific statement of a reason for
imposing the upper term. Therefore, we
cannot agree with defendant that the trial court relied solely on the nature of
the weapon in imposing the upper term, or, even if it relied
in addition to defendant’s criminal history, it would not have imposed the
upper term had it not relied on the former factor.
Additionally,
as the People correctly point out, defendant waived the matter by failing to
object below.
title="">[3] (People
v. Scott (1994) 9 Cal.4th 331, 353.)
Defendant’s “fall back†position, that his trial counsel was incompetent
for failing to object to the court’s reliance on the nature of the weapon in
imposing the upper term, is unmeritorious.
To succeed, defendant must demonstrate a reasonable likelihood that absent
its reliance on the nature of the weapon, the court would have imposed the
midterm. (People v. Price (1991) 1 Cal.4th 324, 492.) However, given the court’s remarks about
defendant’s criminal history as being the reason for aggravating his sentence,
we cannot conclude that he has met his burden in this regard.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] This removes the necessity of determining
whether trial counsel for defendant was incompetent for failing to object to
the trial court’s reliance, to the extent
that it did, on the nature of the weapon in imposing the upper term.
